Ingenuity and creativity are highly valued in the field of copyright. Parody is an interesting manifestation of this creative work. It offers the opportunity to make humorous and satirical reference to copyrighted works or persons without the original author having to give their permission. But what happens if a parody is not funny? The Higher Regional Court of Frankfurt has now made clear statements on this (OLG Frankfurt v. 02.02.2023, Ref.: 11 U 101/22).
What was it about?
The plaintiff is a lawyer and asserted claims for injunctive relief against the defendant. The lawyer was defense counsel in criminal proceedings for possession and distribution of child pornography, which became the focus of media coverage.
The defendant runs an Instagram account and had commented on the trial in a video post. Essentially, the defendant stated that the defendant had behaved inappropriately and that his “cool and casual demeanor” did not correspond to the seriousness of the accusation.
Furthermore, the defendant had posted an Instagram story with the caption “Finally some mail from the lawyer again!“, using photos from the plaintiff’s website. The plaintiff alone holds the rights of use.
The defendant used the same photo in a second story, which he captioned with the text “I find this lawyer…” .
At first instance, an injunction was issued against the defendant in full compliance with the plaintiff’s requests. The latter lodged an appeal and requested that the action be dismissed. He argued that the story and the video were permissible contributions in the form of a parody.
The appeal was partially successful.
Limits of parody: Frankfurt Higher Regional Court distinguishes between permissible and impermissible posts in dispute over Instagram posts
Section 51a of the German Copyright Act concerns the – not always clearly distinguishable – art forms of caricature, parody and pastiche. Under this standard, it is exceptionally permitted to use works without the consent and contrary to the rights of the authors concerned.
The ECJ already determined in 2014 that the essential characteristics of a parody are that it is reminiscent of an existing work, but at the same time has perceptible differences and represents an expression of humor or mockery. When applying the copyright exception, an appropriate balance must be struck between the interests of the author of the parodied work and those of the parodist. If the parody conveys a discriminatory statement, this must be taken into account when balancing interests (ECJ, judgment of 03.09.2014, ref.: C-201/13).
In the present legal dispute, the Higher Regional Court of Frankfurt based its decision on the fact that the contributions in dispute were characterized by linguistic statements. This could – if at all – only be classified as a parody.
The court did not consider the video contribution to have the characteristics of a parody, whereas one of the stories did.
The humor factor: a decisive criterion for parodies
For the scope of protection of Section 51a UrhG, it is important to note that the humorous component plays a central role in the classification of a contribution. A parody without humor cannot regularly meet the requirements for protection under Section 51 UrhG. The OLG Frankfurt emphasized that “the intention to make a “joke” at the expense of a depicted person” is generally sufficient to assume a parody. However, the defendant’s video contribution lacked any humorous component. Rather, it was exclusively a criticism of the plaintiff.
If an alleged parody lacks humor and is instead offensive or defamatory, it may be considered a mere imitation or copy of the original, possibly resulting in copyright infringement. In such cases, the authors of the original work could take legal action to protect their rights.
In the case from Frankfurt, the court therefore upheld the plaintiff’s claim for injunctive relief with regard to the video contribution.
Mockery as a subset of humor?
The Frankfurt court also briefly addressed the question of whether mockery should always be regarded as a subcategory of humor or as an independent alternative to humor. This topic was also part of a question referred to the ECJ, which it had not discussed. As a result, the judges left the question unanswered. “In any event, mockery is characterized by the fact that it involves statements which are accompanied by a disparagement of the person being mocked, express or provoke malicious pleasure or contempt or are hurtful or malicious.”
However, such characteristics could not be inferred from the defendant’s video contribution.
With regard to the video contribution, application of the copyright exception was therefore rejected outright.
Parody through humorous picture text
The court interpreted the use of the image in the Instagram story with the caption “Finally, mail from the lawyer again!” as an ironic comment and found it to be sufficiently humorous. This meant that a parody could generally be assumed. After weighing up the interests at stake, the court came to the conclusion that the use of the photo in the story was permissible. The original advertising purpose of the photo was not thwarted by the disputed use of the image. On the contrary, the purpose was achieved precisely because the plaintiff was depicted in an identifiable manner. After all, he himself had made the photo visible to everyone on his homepage. In the context of such a publication, advertised persons or products must always expect that the photo will be used as a parody.
With regard to the story with the caption “I find this lawyer…” , the court did not consider the defendant’s interests to be predominant. The “…” statement virtually invited the viewer to make defamatory criticism. In contrast, the defendant’s freedom of expression had to take a back seat.
It remains to be seen to what extent the statements of the Higher Regional Court of Frankfurt will affect the future of case law on Section 51a UrhG. In any case, in view of the importance of social media for many people’s everyday working lives, it can be assumed that similar case constellations will not be long in coming.